Re KAC

[2005] QMHC 7

MENTAL HEALTH COURT

CITATION: 

Re KAC [2005] QMHC 007

PARTIES:

APPEAL BY DIRECTOR OF MENTAL HEALTH AGAINST DECISION OF MENTAL HEALTH REVIEW TRIBUNAL

PROCEEDING NO:

0024 of 2005

DELIVERED ON:

21 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

Appeal allowed. The decision of the Mental Health Review Tribunal dated 11 January 2005 to be set aside. 1.   

The defendant will be detained as a forensic patient at the Gold Coast District and Area Network Authorised Mental Health Service with the approval of immediate limited community treatment on the following conditions:2.   

That she reside at an address known to and approved by her treating psychiatrist;a)       

That she advise in advance, in writing, any proposed change of address;b)       

That she is to attend all appointments deemed necessary by the treating psychiatrist;c)        

That she is to comply with medication prescribed by the treating psychiatrist;d)       

That she is to abstain from the use of illicit substances.e)        

CATCHWORDS:

MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – where forensic order initially made in respect of the respondent after a finding of unsoundness of mind in relation to two charges of attempted murder - where Director of Mental Health appealed decision of Mental Health Review Tribunal to revoke forensic order – where mental state stable for two years - where defendant is the sole parent of a three-year old - whether the defendant represents an unacceptable risk to the safety of herself or others having regard to the possible relapse of her mental illness 

COUNSEL:

Mr W Isdale for the appellant

Mr D Shephard for the respondent

SOLICITORS:

The Crown Solicitor for the appellant

Legal Aid Queensland for the respondent

1. This is an appeal by the Director of Mental Health against the revocation of a forensic order by the Mental Health Review Tribunal. 

1. The forensic order was made on 12 September 2003 after a finding of unsoundness of mind in relation to two charges of attempted murder.  It was alleged against KAC that in November 2002 she had thrown herself and two of her children from a bridge.  It seems that the incident was the result of what has been described as a psychotic mania.  She was initially admitted to The Park Centre for Mental Health.  Ultimately, though, she was detained at the Gold Coast Director Authorised Mental Health Service, and was there permitted a gradual increase in limited community treatment to six nights a week.  The practical result was that KAC was living at a unit and spending one night of the week in the hospital.

1. On 11 January 2005, the Mental Health Review Tribunal made the decision to revoke the forensic order altogether.  The Director of Mental Health appeals essentially on the ground that the Tribunal could not have been satisfied that KAC does not represent an unacceptable risk to the safety of herself or others having regard to her mental illness, and particular emphasis is placed on the fact that she is in the position of a sole parent of a three-year old.  A stay was granted of the Tribunal's decision on 18 February 2005.

1. The decision of the Tribunal was made largely as a result of a report from the treating team at the Gold Coast Hospital, including Dr A.  The treating team presented a picture of KAC of complete insight into her condition; that she was compliant with her medication requirements; that she had been entirely cooperative with treatment; and that she was undertaking very satisfactorily the care of her three-year old child.  That picture is not displaced by anything anyone else has said.  Her mental state has been stable now for some two years, it seems.  The real issue is this, though:  the question of possible relapse.

1. In the proceedings here, evidence was heard from Dr B; he has both given a report and given oral evidence.  Dr B agrees that KAC is extremely well.  She seems to have recovered completely and she has taken responsibility for her own case.  But, he says, there is a risk of unrecognised deterioration in her condition.  He says that there is no evidence that there is any imminent risk of harm by KAC to herself or anyone.  The risk lies in the risk of further episodes, a relapse of her condition, even with compliance with medication.  He says that persons suffering from bipolar disorder can expect to have something like nine episodes of the illness in their lifetime.

1. That evidence, it seems to me, is not speculative; it is really expert advice based on expertise in the field.  Essentially what Dr B says are his concerns are these:  the cyclical nature of the illness combined with the seriousness of the offences alleged against KAC, in the first instance.  They seem to me entirely rational concerns.

1. Dr C, KAC's treating psychiatrist, also gave evidence.  He has been responsible for her care since she came out of hospital earlier this year and has seen her since 17 January 2005.  He has seen her four times since then.  He says that she shows no sign of any psychotic symptoms.  In his view, she does not need to be the subject of a forensic order.  He says that the episode in which the children were thrown from the bridge is explicable in terms of the stresses at the time of the incident which were affecting KAC:  she was worried that she had cancer, there had been the break up of an abusive relationship, she had financial problems.  Since those stresses no longer exist, the risk, he says, is gone; she has been normal since that time.

1. Dr C went so far as to say that the chances of KAC becoming ill were the same as anyone else’s, although he qualified that slightly to say that if it were a greater risk than others in the community it was, notwithstanding, a very low risk.  He gave that opinion notwithstanding a strong family history in KAC's case of bipolar affective disorder and schizophrenia.  Dr C did concede that a person could relapse with this condition without stress, but generally he thought that there was no appreciable risk in KAC's case.

1. I have also had the benefit of the views of Dr Wood and Dr Grant.  Dr Wood says that one of the difficulties with this disorder is the risk, when symptoms surface, of a loss of insight.  He points to the fact that this is a particularly vulnerable time, because KAC has the care of a child.  It is important, he considers, that there be a forensic order because it carries not only the opportunity for observation of KAC but also the opportunity to respond promptly to any sign of symptoms.

1. Dr Grant takes a similar view as to a continuing risk of relapse with similar behaviour to what has occurred in the past.  He also expresses a concern that there is to be a cessation of the anti-psychotic drug which KAC is taking, so that it cannot be said that her treatment is set at this time.  There is a degree of flux involved.

1. I take into account the fact that KAC does have considerable support in the community.  It is obvious that Ms D, in particular, is not somebody who will draw a line under the case.  She is somebody, it is clear, who will do her very best for KAC and has displayed a commendable degree of commitment. The difficulty, though, is that continuing risk, slight though it might be, of a relapse.  I must say that I prefer Dr B's evidence as to the existence of the risk.

1. It is of some mild significance, perhaps, that the Mental Health Review Tribunal proceeded on a mistaken premise that the two children involved in the incident were the two older children of KAC, those now with their father in New Zealand, when in fact one was the child of whom KAC still has the care.  Dr B, I should mention, did think that that presented some risk in itself, in that if there were a return to delusion it may well focus on the same objects; but that does not loom particularly large in my reasons.

1. What is the greater concern is this:  the vulnerability of the child who resides with KAC in particular - not so much because he was one of the children involved last time but because he is a small child in the care of KAC - renders what might otherwise be considered a slight risk unacceptable.  Statistically, it may not be a large risk of relapse but the consequences would be catastrophic.  That, I think, is what makes the risk unacceptable and leads me to the conclusion that the revocation of the forensic order was premature.  In my view, a longer period of such an order with the opportunity for observation in the community and for prompt response, should there be any difficulty, is warranted.

1. It is the case that KAC for some time prior to the revocation of the order had been in the position of, largely, a resident in the outside community but she still remained an inpatient of the hospital.  That seems to me a rather different proposition from her living full time in the community and a period being allowed for continuing monitoring of her.

1. I might say, too, that it is of some mild concern that she does not presently have a long-term relationship with her treating psychiatrist, Dr C.  She has only seen him four times since January.  The success and the continuance of that relationship may well also be vital to her monitoring and care.

1. In all the circumstances, then, I am of the view that the Tribunal did not give sufficient weight to the element of risk and that its decision should be set aside.

1. I will substitute a forensic order for its decision.

1. KAC will be detained to the Gold Coast District and Area Network Authorised Mental Health Service.  I approve immediate limited community treatment on the conditions that she reside at an address known to and approved of by her treating psychiatrist; that she advise in advance in writing of any proposed change of address; that she attend all appointments deemed necessary by the treating psychiatrist; that she comply with medication prescribed by the treating psychiatrist; and that she abstain from use of illicit substances.